Ongoing
Battles for Freedom
During the 1980s and ‘90s, several of Doug Christie’s
most important free speech cases, including Keegstra and Zundel,
were highly publicized throughout the Canadian media. These days, it might seem
that the mainstream media is asleep to many fundamental threats to our
freedoms.
Nevertheless, Doug Christie’s work continues on a
number of fronts, including:
R.
v. Montague
Mr. Christie has represented Bruce and Donna
Montague in the Ontario Superior Court of Justice, the Ontario Court of Appeal,
and on a leave application to the Supreme Court of Canada on the issue of the possession
of firearms in their home, contrary to various provisions of the Firearms Act
and licensing and registration requirements, as well as storage requirements
under the Criminal Code and Firearms Act. Those actions were unsuccessful but
there remains the issue of whether firearms must automatically be forfeit when possessed
peaceably, where no crime other than the possession of them is evident. In
other words, there is a provision of the Criminal Code (Section 491) which
requires the forfeiture of firearms if they are used in the commission of an
offence. Firearms merely possessed without proper license, without
registration, or contrary to storage regulations, could be arguably not used in
the commission of an offence. However, the Crown interprets the possession of
firearms used in the commission of an offence as including those offences which
are merely the possession of the firearm itself. This consequence is a result
of the increasingly onerous and draconian firearms legislation in Canada. The
forfeiture of firearms used in the commission of an offence was traditionally
only where the firearms were used in the commission of an offence other than
the mere possession of the firearm itself, such as in robbery or murder or some
other activity where the firearm was being used.
In the ongoing matter, the
issue is whether Section 491 of the Criminal Code is constitutionally
valid in that it is unnecessary and unconnected rationally to any objective of
public safety when the mere possession of the firearm itself becomes the crime
in which the firearm is allegedly used.
491. (1) Subject
to subsection (2), where it is determined by a court that
(a) a
weapon, an imitation firearm, a prohibited device, any ammunition, any
prohibited ammunition or an explosive substance was used in the commission of
an offence and that thing has been seized and detained, or
(b) that a person has committed an
offence that involves, or the subject-matter of which is, a firearm, a
cross-bow, a prohibited weapon, a restricted weapon, a prohibited device,
ammunition, prohibited ammunition or an explosive substance and any such thing
has been seized and detained,
the thing so seized and detained is forfeited
to Her Majesty and shall be disposed of as the Attorney General directs.
Mr. Christie’s position
is that either this section is unconstitutional, or alternatively that a constitutional
exemption should be allowed for Mr. and Mrs. Montague who possessed these
firearms lawfully before their licensing and registration expired and in fact
they were stored in a room so secure that the police couldn’t find them, even
with a search warrant, unless and until Mr. Montague, under threat of the destruction
of his home revealed their location in a secret sealed chamber in his house.
It is obvious that this
is an important case regarding the restriction of firearms used in Canada and
affects those who lawfully possess firearms but resist the onerous duties of
storage, registration, and licensing that have been imposed on them by those
concerned about firearms abuse in the big cities of Toronto, Montreal, and
Vancouver. Mr. Montague’s case arises in a remote area of Northern Ontario
called Oxdrift, northwest of Dryden, Ontario. Mr.
Christie considers it an honour to represent Mr. and Mrs. Montague, two people
of principle whose entire firearms challenge is set out in their website,
BruceMontague.ca.
Mr. Justice Wright in his decision in the Montague criminal forfeiture case, ruled that the Crown must return the ammunition seized, but that the firearms should be forfeit under Section 491. As a result, Mr. Christie has filed a Notice of Appeal in the Ontario Court of Appeal and ordered the transcript of the hearing before Mr. Justice Wright, and this matter is now progressing towards a hearing in the Court of Appeal.
R.
v. Klundert
There was an appeal from the conviction
on the third trial of Dr. Klundert’s evasion charge, stemming from 1993 – 1998,
and an appeal by the Crown and the defence from a conviction for
making a false statement and an acquittal for evasion for the same acts and
same process in the years 2000 to 2005. Dr. Klundert has been acquitted twice by
juries of evasion and only convicted on the third trial.
The Court of Appeal heard argument in Dr. Klundert's appeal on September 11, 2011, and rendered a judgement denying the conviction appeal of Dr. Klundert, but allowing his sentence appeal and imposing a new sentence, namely a conditional sentence to be served in the community, and overturning the one year prison sentence imposed by the trial judge. This means that although Dr. Klundert lost his appeal and has been finally convicted, with the Supreme Court of Canada rejecting any leave application, Dr. Klundert is under a conditional sentence and not required to do further time in jail.
In the latest developments, the Crown is seeking at the instance of the conditional sentence supervisor to vary the terms of his conditional sentence. They are trying to do so when it appears no fundamental change in circumstances has occurred, and they are not trying to do so before the judge who imposed the conditional sentence (i.e. the three judges of the Court of Appeal), but rather before the Superior Court. This matter comes on for hearing before the Superior Court of Justice in Windsor on October 12, 2012, and Mr. Christie will argue that the only place appropriate to vary a Conditional Sentence Order of the Court of Appeal is in the Court of Appeal.
Dr. Klundert continues his practice of optometry in
Windsor, Ontario.
R.
v. D.J.W.
Mr. Christie is also awaiting an appeal to be heard
in the British Columbia Court of Appeal in regard to the case of D.J.W. who endeavoured to circumcise his four year old son. He was convicted
at trial of criminal negligence and acquitted of aggravated assault. The Crown
has appealed his acquittal of assault while the defence, under Mr. Christie as
counsel, has appealed his conviction for criminal negligence. The appeal is to
be heard in the Supreme Court of Canada on November 16, 2012.
R.
v. S.
Mr. Christie is also challenging the constitutional validity
of the provisions of the Criminal Code in the case of S., which is currently
set for trial in October in Victoria, on charges of “procurement.” This charge
makes a crime the mere act of discussing prostitution with someone who is under
the age of 18 years. This, in Mr. Christie’s view, is a matter of freedom of
expression and the law goes much too far in endeavouring to prevent the
discussion of a matter which may not involve any intent whatsoever to engage in
the actual act of prostitution with a juvenile.
Inquest
of Jeff Hughes
Mr. Christie is also acting pro bono for the family
of Jeff Hughes who was shot by police on October 23, 2009 in the City of
Nanaimo. His inquest is scheduled to commence at the courthouse in Nanaimo on
July 25, 2011.
R.
v. Spratt & Von Dehn
In the case of R. v. Spratt & Von Dehn, Mr.
Christie is involved in the defence of Cecilia Von Dehn, who is charged with
Mr. Spratt with appearing within the “bubble zone” of an abortion clinic, with
signs that advise about the existence of the bubble
zone and the bill by which it was established. In this remarkable and unique
case, people referred to as “abortion protestors” appeared within the bubble
zone not to contradict the law or express opinions about its validity, or
engage in sidewalk counselling, or criticise abortion, but merely to point out
the existence of the bubble zone and the law by which it is established. This
case involves serious issues of freedom of expression and the Access to
Abortion Services Act is being stretched to its utmost limits to prevent anyone
from even identifying the existence of the bubble zone and therefore the law
itself. To speak about the law is a breach of the law, according to the argument
of the Crown.
Madam Justice Watchuk convicted both Spratt and Von Dehn and from this an appeal was taken to Madam Justice Fisher of the Supreme Court of British Columbia. She dismissed the appeal on December ___, 2011. From this, leave to appeal was taken, and a judgement of a single judge of the Court of Appeal was delivered, allowing leave to appeal on September 10, 2012. The case of Spratt and Von Dehn is now going to make its way to the BC Court of Appeal on the simple issue: Can it ever be against the law to accurately and truthfully indicate the nature of the law. To put it another way: Have we reached the stage of George Orwell's 1984, when it's illegal to advertise the existence and nature of the law itself. That seems to have become the outcome, if not the intent, of the judements of Madam Justice Watchuk and Madam Justice Fisher. With some hope the Court of Appeal might set this aside, we will keep you informed of the progress of these two appeals.
CHRC
v. Tremaine
This case involves an individual who has sacrificed
everything for the simple right to his political beliefs. Terry Tremaine was a
well-regarded Mathematics instructor at the University of Saskatchewan who lost
his job and his livelihood after comments made on internet forums came to the
attention of his employer. As if this wasn’t enough, Mr. Tremaine was
prosecuted by the Canadian Human Rights Commission and later criminally. At the
same time as he is being prosecuted criminally before the Court of Queen’s
Bench in Regina, he is being prosecuted before the Federal Court for contempt
of the Human Rights Tribunal’s order for the same posted material. Both of
these prosecutions are for the same comments, deposited on a foreign website, which
nobody was forced to read.
Canadian hate speech laws make it an offence to “communicate”
statements that are “likely to expose a person or persons to hatred or contempt.”
But can a person who simply deposits information on a foreign computer for
other people to download on their own terms really be said to have “communicated?”
Mr. Tremaine isn’t trying to force his views on anyone, only to maintain a
record of them in another country where they are perfectly legal. If a Canadian
chooses to go out of the way to access that record, who’s really doing the
communicating? As the cases against Mr. Tremaine wind their way through the
courts, they are bringing to light numerous important issues about the limits
on state power to prosecute an individual for their honestly-held peaceful
beliefs.
Section 319(2) Case Against Tremaine
CHRC
v. Lemire
CHRC v. Lemire: Another case involving hate speech
laws, which has been successfully been argued up to this point. The Canadian
Human Rights Tribunal itself recognized that the hate speech provision of the
Human Rights Act was a violation of the constitutional right to free expression
and refused to enforce it. Now the Human Rights Commission (the prosecutorial arm of Canada’s human rights
bureaucracy) is appealing in an attempt to save this insidious law.
Fortunately, Mr. Christie is not alone in this battle, as numerous civil
liberties groups have jumped on the bandwagon in support of freedom of
expression.
Marc Lemire was initially and continues to be ably defended by the experienced civil liberties lawyer from Brighton, Ontario, Barbara Kulaszka. Mr. Christie, on behalf of the Canadian Free Speech League, is merely an intervener to support the arguments of Mr. Lemire as they are currently being presented to the Federal Court trial division’s judicial review of the Tribunal’s decision to quash the section.
The Richter Case
Mr. Christie on the appeal of Mr. Bernard Richter, after Mr. Richter was convicted of obstructing a peace officer in the execution of his duty. Mr. Richter, traveling lawfully on the Yellowhead Highway, east towards Edmonton in the area of Stony Plain, pulled over lawfully on the highway to check to see if there were tie down straps in the back of his canopy. As he stepped out of the vehicle, a peace officer shouted at him over the loudhailer to get back in his truck. He went to the back of his truck, opened the canopy window, looked in, and as he was turning to go back into his truck, he was wrestled to the ground to the Constable who had previously drawn his firearm. He was arrested and charged with resisting arrest, obstruction, and having a weapon for a purpose dangerous to the public peace. This latter object, which was in the back of the truck, was a boat hook used to prop open the back window when looking in the back of the truck. The court dismissed that charge and the alleged absence of mudflaps on a truck which might not have required them, and the failure or defect of daytime running lights, charges which were obviously thought of after the time when the vehicle was stopped. The question arises as to whether it was ever thought of before the vehicle was stopped.
"Times New Roman","serif"'>Mr. Richter was convicted at trial in Stony Plain before His Honour Judge Pahl on May 7, 2012, from which he appealed to the Court of Queen's Bench as a summary conviction appeal. His appeal was heard September 13 and judgement was reserved. In all likelihood, this case will clarify the law of police powers. Mr. Christie maintains that if every word that comes out of a policeman's mouth constitutes a command, disobedience of which is a crime, it cannot be long before the policeman's rationalization requires you to get on your knees face down on the ground. Keep in mind, this is not an American takedown of a drug dealer, but an elderly man in his late 60's, travelling lawfully along the highway with his handicapped wife, doing nothing whatsoever illegal, and the police officer's justification was that he thought that he might have a gun in the back of his truck and might attempt to shoot him. Mr. Christie argued that such imaginings cannot be a justification for creating a non-existent crime out of perfectly lawful actions of looking in the back of a truck.